Thursday, 19 March 1953
Seanad Éireann Debate
In sub-section (1), line 61, after “offence” to add “It shall be a good defence for any director or member of a committee of management to prove that he was absent from the meeting at which the consent or approval was given and had no knowledge of the offence.”— (Senator Douglas.)
Mr. Hartnett: I am sorry if I am wrong. I find that this amendment is an exact reflection of Section 6 of sub-section (5) of the Supplies and Services (Temporary Provisions) Act of 1946, except that, if anything, the Minister has modified the terms of this particular section. Under that section of the 1946 Act to which I have referred, there were caught, in addition to the directors, the manager and the secretary of a body corporate which contravened any of the provisions of that Act. That Act has been in operation for some seven years and nobody has had cause to complain that it has acted in a manner prejudicial to the defence in any particular case.
I recommend to the House that this amendment should be rejected and I do so for the reason that I want to safeguard the interest of any person who may be charged with an offence under the provisions of this Act. As the section stands, the onus of proving guilt rests upon the prosecution and the prosecution will have to prove whether there was guilty knowledge; whether there was what the lawyers call mens rea; whether there was the culpable compliance that is an essential ingredient in every charge unless the onus of proof is by Statute transferred to the defence. There are cases like the Customs (Temporary Provisions) Act of 1945 where the onus is in a very flagrant way transferred to the defence.
If Senator Douglas's amendment is adopted, it means, in my view, and I think it may be held by the courts to mean that the onus is on the defence to prove that they were absent; that, if he was a director or a member of a management committee and if an offence has been committed and could be made attributable to that body, he was ipso facto guilty unless he proves that he was absent from the meeting at which the cause of the trouble or action occurred and had no knowledge of the offence.  Now, first and foremost, that amendment is unnecessary. A prima facie case having been established by the prosecution, if he were able to prove that there was no guilty complicity, he is entitled to an acquittal.
I would ask Senator Douglas to consider this: it may lead to other legal difficulties. If this amendment were to be adopted and a case were to be brought summarily before a district justice, the enactment of this amendment might lead the district Justice to believe that if the director were present and voted against the consent or approval being given to the objectionable restrictive practice he would be liable under the Act. There is a well-known legal maxim: expressio unius, alterius exclusio, if you deliberately and expressly exclude one case-that is, where he is absent from the meeting at which consent or approval was given—you might be held to include that in circumstances where he was present at the meeting and had fought like a tiger against the particular trade practice being approved and finally had been overborne by persons on the board who convinced him that it did not contravene the Act and did not make the company liable to a penalty, in those circumstances if this amendment is adopted he might be put to the pin of his collar to escape.
Any specific inclusion of a sub-section saying “it shall be a good defence” is a positive embarrassment to a lawyer endeavouring to defend a person charged with a criminal offence. In all cases the onus is on the prosecution to prove their case. No man has to prove himself innocent. People whose everyday work it is to defend persons charged with criminal offences are only too well aware of the dangers of putting in an amendment of that kind. I have no doubt it is actuated by the very best possible motives. I have no doubt it was conceived in an effort to protect the liberty of the subject, but it shows a lack of experience of the procedure in criminal courts.
Well-intentioned persons in the past often have been responsible for putting sections into Acts which they believed would have the effect of protecting the  subject, but which, it afterwards traspired, had the very opposite effect. In the interest of the persons who may be charged with offences under this Bill when it becomes an Act—I certainly hold no brief for them at the moment—but in their interest, I think it is advisable that the section should be left as it is.
“Where an offence under this section is committed by a body corporate and is proved to have been so committed with the consent or approval of, or to have been facilitated by any neglect on the part of, any director, manager, secretary or other officer of such body corporate, such director, manager, secretary or other officer shall also be deemed to have committed the said offence and shall be liable to be proceeded against and punished accordingly.”
Now, immediately, I can see no reason why in this case the Minister has not thrown the net as wide as it was thrown in the 1946 Act. There may be a good reason for it but, if there is not, the Minister might consider bringing in an amendment on the Report Stage to widen the terms of this section.
The Minister did, I think, in the Dáil—if my recollection serves me rightly—alter “neglect” which is used in Section 6, sub-section (5) of the 1946 Act to “default.”“Neglect” and “default” is one of these legal couplets in very common use. I went to the trouble of looking up “neglect” in Stroud's Judicial Dictionary. To “neglect” doing is the omission to do some duty which the party is able to do. The dictionary gives the example that a gas company does not “neglect or refuse” to supply gas when it is prevented from doing so by vis major, such as, an extraordinary frost.
Now, “default” in the same dictionary is described as a very loose— of course, the definition is taken from accepted legal precedent—and large word in the legal sense. If I were to  choose between the words “neglect” and “default” I would have chosen “neglect,”“default” being the wider one, though, again, that admits of a great deal of argument, depending on the circumstances of the case and very often on a person being tried. At any rate. I do not think there is a ha'porth of difference for all practical purposed between “neglect” and “default” in the context of this particular section. For the reasons I have given this House, the greater protection of the potential offenders under this Act, who in a democracy are entitled to a fair trial, I would ask the House to reject Senator Douglas's amendment.
On the question of the two words. I expressed my view yesterday, not claiming it on legal grounds, that “neglect” is less objectionable than “default.” That is purely because I read it in a dictionary, not because of any experience. I am not at all impressed by Senator Hartnett's discovery that this is in a 1946 Emergency Powers Continuation Act. I would have been if he had told me there had been any prosecution of individuals under it, but I do not think there have been.
In a case of this kind, where people who carry on their business honestly and straightforwardly are perturbed, I hold it is our duty to draw attention to difficulties we see and try to find some way of removing them. None of my amendments on this stage, as I have said already, were prepared after consultation they were put down for the purpose of raising points. I expected that if the Minister agreed he would make some improvement; if he did not, I could put them down again on the Report Stage.
Before Senator Hartnett spoke, I had intended to say I would seek leave of the House to withdraw the amendment and would probably put down something later which would drop the point  with regard to attendance at meetings —which I see could be misunderstood —and endeavour to provide that a person cannot be held guilty of an offence in the case of something they did not or could not know about. This is going to be rather difficult, but I would like leave of the House to withdraw this amendment and if necessary I will put something down on the Report Stage. At the same time, I hope the Minister will have a further look at this, in his own interest and the interest of the Government, to see whether there are not some grounds for the uneasiness which has been expressed. I did not particularly discover this: my attention was drawn to it from outside the House long before I put down the amendment.
Mr. Lemass: It may save time on the Report Stage if I point out that, as the section stands, the director of a company cannot be prosecuted unless it can be proven that he consented to or approved of the offence. Therefore, if he has no knowledge, he cannot possibly be held to be guilty.
With regard to the point Senator Hartnett raised, about managers and officers of a company, I think they are adequately caught under Section 12, which provides that any person who aids, abets, or assists another person to contravene the Act is equally guilty of an offence.
Mr. Douglas: I am not saying that what the Minister says is not correct, but it is just a very good illustration of the difficulty of interpreting a section, particularly when you are dealing with personal matters. In Section 13 the word “or” means “and”, according to the Minister's interpretation. If the word “and”, were put in, I would be perfectly satisfied. It says “and is proved to have been so committed with the consent or approval of, or to have been facilitated by any default”. It seems to me that “or” means facilitate or default, that they are not to be connected.
Mr. Douglas: There may be, but it  is not in the section. I am not trying to press the point now, but this was taken up by the ordinary businessman to mean that he could find himself guilty of an offence by a company with which he was connected, regarding something he could not or did not have any knowledge or. I rather gathered from the Minister and from Senator Hartnett that that could not be done, no matter what is in the section. I leave it at that. It is just as well I raised it, if only to get that point made clear.
Mr. Douglas: I think there is no need at this stage to provide penalties anything like so severe as those provided in the Bill. I did not put down an amendment—I thought it would be more or less useless to do so—but I want to put it on record that, to my mind, it is wrong to provide that you can be prosecuted within 12 months and there can be a continuing offence for which the fine could be either £50 in the case of summary conviction, which works out at about £18,000; or £500 a day on indictment. I did not go into how much the £500 a day would be over a year, but I suppose we could buy another Tulyar with it. Is it really necessary in dealing with a matter of this kind to have a continuous fine at the rate of £50 a day which could be applied to an offence where a person at the time did not know it was an offence?
Mr. Douglas: The Minister has just come to the point I was making. Is it clear that it is the second and subsequent offences after the matter has been held to be an offence under the Act? My reading of it—though it may be through want of being a lawyer, yet others have read the same thing—is that it may be a continuing offence. In  other words, you may find yourself after three, six or nine months prosecuted and fined £50 a day. I am not suggesting that the court would be likely to apply £50 a day but even £1 a day, which would seem small in relation to this, would be far too high. I think something is required there and I would ask the Minister to look into it.
This has appeared in several Acts before. I may be wrong, but I think the effect of it is to increase the period under which there can be a prosecution to 12 months instead of six. I think six is ample in a Bill of this kind—certainly for a very large number of cases. I know the analogy is not quite the same. I have had no experience myself of having anything to do with prosecutions under Emergency Powers Orders, but I have been told by barristers and others that they have found it, in their opinion, grossly unfair because it would be impossible to provide a proper defence as to what an employee or assistant did 12 months before.
It may be that this is deliberate Government policy, but I rather think it was put in because of a habit on the part of the draftsman to put it into Acts. Is has been put into many Acts recently. I suggest there is no need for more than six.
Mr. Lemass: I do not know whether there is a case to be made for the permanent amendment of the Petty Sessions (Ireland) Act of 1851, but in cases of this kind it is desirable to have a longer period specified during which prosecutions may be taken—that is, a longer period from the date of the offence. It is my experience in the administration of the Emergency Powers Orders during the war that it was often difficult to get evidence which would stand up in court in relation to an offence of the kind involved here and have the case prepared for trial within the limit of six months. Even if that caused inconvenience, it  is better that it should, than that some offender under one of these Acts should escape punishment on that technical ground.
In dealing with restrictive trade practices, it may be months before it becomes known that an offence has been committed and the mere fact that detection has been avoided for a period should not be a means of escaping punishment. I think it is necessary to have this longer period. It is a customary provision in Bills of this kind, and particularly Bills dealing with the commercial activities of large concerns, to have a reasonable period prescribed during which evidence can be sought of an offence, and the case prepared and brought to trial.
Mr. Baxter: I do not think it is. If you are to have prosecutions of this nature you have to take account of the fact that under the Emergency Powers Act prosecutions arose because inspectors went out and made certain investigations and obviously took quite a long time to cover the ground and get all the necessary information. In this case, the Minister is going to have people complaining and lodging their complaints with him. He is not going to have any peace or rest any more once this is the law, and his Department building will have to be doubled and the staff added to very considerably. I do not think it is the same thing at all.
It is a very unsatisfactory situation that a person should never know when he is finished or when the Department is going to pounce upon him and there ought to be some limitation of the time. There is no urgency about people being penalised for an offence, if somebody cannot be brought to justice within the six months, but if there is much of an offence, the Minister and his Department will see to it that punishment  is meted out to the offender long before six months has elapsed. If that cannot be done, I do not think that the Act is really effective at all.
Mr. Lemass: The Senator is missing the point, which is that it may not be possible to get the evidence of the commission of the offence within that period. If some trade ring against whom an Act has been directed decides to continue to function as a ring but to get under cover in doing so, it may operate quite successfully for some. period before knowledge of its operation reaches the public or those responsible for the enforcement of the Act, and they escape punishment altogether because they covered up too well. That is the issue involved—should there be power to bring a prosecution even though the offence took place six months before the evidence became available?
Mr. Hartnett: The limitation of six months applies only to offences triable summarily. Anybody charged with an indictable offence may be charged 20, 25 or 40 years after the offence was committed. It is very difficult to see why the distinction is drawn because offences triable summarily are, in the very nature of the case, by definition, offences which are less serious than offences which are triable on indictment, and a person suffers a lesser penalty than be would normally suffer, if convicted after having been tried on indictment. I do not think there is any great principle at stake.
Mr. Lemass: The effect of that point is that if the longer period is not allowed to enable proceedings to be taken in a summary way, the only alternative, if the offender is not to escape, is trial by indictment.
Mr. Douglas: I agree that no great principle is involved, but I took quite a different view from that taken by the Minister. The impression I had was that the section was there in order that there would be summary proceedings for what I regard as minor offences, but the Minister talks about a big combine. I cannot see proceedings being taken against them at all. The kind of case I had in mind is  where an Order is made under the Act by which a practice which has not been illegal suddenly becomes illegal and a firm or an employee of the firm is guilty for a week of continuing that practice. Twelve months after, they can be brought into court because of that act, although it has long ceased. The whole thing is to stop an unfair practice. It is not mainly a matter of getting fines, or penalising people, but to stop such a practice. The practice was not illegal before and I still think that six months is ample, because if it is continued afterwards, the six months' provision does not operate. They are still doing it and the question of time will not arise. On the other hand, in the case of a firm, an employee of which carries on a practice for two days after an Order has been made, that firm can be prosecuted 12 months afterwards, as I am told did happen in the case of an offence under the Emergency Powers Act. I do not think it is fair and I do not think it achieves anything, but I withdraw the amendment.
The effect of this amendment, if accepted, will be to provide that no member of the commission who is personally interested in any matter with which the commission is dealing may sit on an inquiry or have anything to do with an inquiry. Clause 3 provides that if a member is personally interested in a matter with which the commission is dealing, he shall inform the Minister accordingly and shall not act as a member during the consideration of the matter, unless the Minister, being of opinion that his interest is not such as to interfere with the  impartial performance of his duties, authorises him to act. I propose this amendment because I want to ensure that if a member is in any way personally interested, he will not be allowed to act.
I should think that anybody learning that a member of the commission dealing with a particular matter was in any way interested in that matter would be amazed and would find it very difficult to believe that a commission of which that person was a member might not go wrong. The public might take the view that in such circumstances they could have no faith in the commission and I think they would be rightly entitled to take that view. I feel that if one member of the commission has any interest in the particular matter personally, the Minister should be most careful to see that he does not act and I put down the amendment to provide that the Minister may not give permission to a member to act when he has any interest in the matter before the commission.
It would be entirely wrong that a member who was in the slightest degree—I would go so far as to say, personally or otherwise—interested should act on the commission and I am surprised that the Minister, unless be has a particularly good reason for doing so, inserted that last paragraph in the clause. I feel the Minister would be only too ready to say to a member of the commission who was interested that he would not be permitted to act on the commission. I cannot see why the Minister would exercise the right in the clause that a member of the commission so interested would be entitled to act. I think the last part of the clause should be deleted.
Mr. Lemass: Would the Senator go-so far as to say that a member should not act on the commission when the commission was investigating retail price maintenance arrangements in the tobacco trade if he were a smoker?
Mr. Lemass: Such a person would have an interest in the outcome of the  inquiry if it meant the possibility of reduced prices for cigarettes. Everybody will have some interest in something. It may be indirect and remote or it may be immediate and direct. If it is immediate and direct, I agree that the person should not act on the commission. The section provides that the Minister should be informed of the nature of the interest. The Minister would only authorise the person to act if in his opinion the interest of such person is not such as to interfere with the impartial performance of his duty. Where his interest is remote and of such a character that it would not influence his approach to the matters with which the commission was dealing or undermine his impartiality in the least, then the Minister may authorise him to act. If anything, this section is more tightly drawn than the corresponding sections in other Bills in so far as it provides in this case that the member will not act unless the Minister authorises him and the Minister would only do that if the circumstances are such as would not affect the person's impartial approach to a problem.
Mr. P.F. O'Reilly: I quite agree with the Minister that most members of the commission will have some interest in the matters which will come before them to which the Minister referred. A member of the commission may take a bottle of lemonade and be interested in mineral water manufacture or he may smoke cigarettes. If that is a case where the Minister will give his consent, I would have no great objection to withdrawing my amendment and allowing the section to stand. As the clause stands it would appear that the Minister has the unrestricted right to give permission. I know he will be very careful to ensure that a person who would have substantial interest would not sit on the commission.
I would be much easier in my mind, however, if the Minister would accept my amendment and put himself in the position that he could not give any consent. However, I feel that cases will arise such as those which he mentioned. Perhaps, the Minister might answer this question. Suppose  a member of the commission happened to hold a £1 share in a very large company. That would not give the member any great beneficial interest in the concern but would the Minister in such a case allow a member of the commission to sit on the inquiry dealing with the company in which the member had only a £1 share?
Mr. Lemass: I probably would. The section is drawn to ensure that the member who feels he has an interest in the matter under inquiry must report to the Minister and the Minister must not permit him to act unless the Minister is satisfied that the person's interest is so slight and remote that it could not have any effect on his impartial approach to the problem.
During the discussions on the Committee Stage certain things emerged very clearly. The Bill provides that two members may provide a quorum. Therefore, the commission can act with two members one of whom may be a temporal member appointed specially for the purpose of a particular inquiry. That commission is intended by the Government not only to ascertain facts but to form opinions as to what is fair or unfair, reasonable or unreasonable, just or unjust, what is or what is not in the public interest and even what is in accordance with the principles of social justice. In the criticism which took place mainly from this side of the House against the Minister's desire that there should be no impossible amendment of an Act confirming an Order, the Minister placed considerable emphasis on the fact that the report, although the inquiry might be by one person only or possibly two, would be by the commission as a whole. But when we discuss what the commission as a whole may mean, we find the quorum is two and that they can be temporary members.
We gathered from the Minister's speech that the temporary members  will be mainly of two kinds—those who are to take the place of a permanent member who is ill or unable to act or those who are appointed as assessors for a particular inquiry and who will have special knowledge. The situation regarding people with special knowledge and a possible interest has always seemed to me to be one which may create considerable difficulty. Personally, I suggest that two is too small a quorum but if there must be two at least the two should be two permanent members.
It must be taken into consideration that the function of this particular commission of which two will form a quorum is in some respects more or less usual in the sense that it is making provision for the passing of legislation by a Minister. It is unusual in the sense that its functions are not only to find facts on which, there will be delegated legislation but also to form opinions. If those opinions are produced and the Minister agrees with them, then the House can do nothing except to say it agrees. On the other hand nothing whatever may be done about the report and that is an equally unsatisfactory position.
I feel rather strongly on this matter. It is an improper surrendering of the functions of the House, particularly when the quorum is so small. I think a commission of three is too small anyway. I suggest to the Minister that if he must have two they should be permanent and if the commission is composed of five the quorum should be at least three.
Mr. Lemass: I do not disagree with the Senator in arguing that where a temporary member is appointed for the purpose of a particular inquiry the quorum for the commission might be enlarged for the occasion. The Bill provides that the Minister may adjust the quorum in such a case. Temporary members may also be appointed during the incapacity of a permanent member. If there is a commission of three and two are incapacitated by illness at the same time—the commission might consist of one permanent and two temporary members—nothing, of course, could be done. That would be the position  if the Senator's amendment was accepted. I think it is far better to leave the matter as it stands. If the membership is three the quorum is two. The Minister could alter the quorum if the circumstances required it.
Mr. Douglas: Having regard to the function of this commission, I think it is not sufficient to provide that the Quorum should be two unless the Minister provides otherwise. I think the Minister could exercise a little ingenuity and make it clear. If not he might reverse it, and put the onus on the Minister of allowing a temporary member to act as part of the quorum. The case made for this commission is based on the whole commission reporting and, although they do not all have to inquire into a particular case, they are to make the report and are fully responsible for the recommendations. Again, I emphasise that these recommendations are to have the force of law if one Minister approves of them, although the House can see, if you like, what is being done. It is a bad practice, however. It is not a matter in which we would have to report to the House——
Mr. Douglas: The Minister has power to amend it? My view is that the quorum should be adequate and, if necessary, the Minister should have temporary power to reduce it in emergency. The Minister is not going around spending his or his officials' time amending the quorum and there will be a standing quorum. There should be a quorum of three members subject to the right of the Minister to alter that quorum where it would be necessary under the circumstances.
The position of this commission is peculiar and I cannot emphasise that too much. Temporary members are going to form opinions as to what is fair or unfair and—I do not care how honest they are—it cannot be satisfactory or reliable until there has been built up a practice and general consensus of opinion. To think that just one  member and a person temporarily appointed for the purpose makes a quorum, is wrong.
Professor Hayes: I think there is an excellent case for this and it does not hamper the Minister in any way. If Senator Douglas's amendment is accepted, paragraph (5) sub-section (1) would read: “The quorum for a meeting of the commission shall be two permanent members unless the Minister otherwise directs.” No power is taken from the Minister and there is no power or provision made to keep the commission from working. It means that in the ordinary way when the commission is meeting two permanent members must be present to make the report, and, if there is illness or any special situation, the amendment leaves it to the discretion of the Minister, without any hampering clause, to make any direction he pleases with regard to the quorum. Surely this commission, as has been pointed out over and over again, is not a legal commission, is not working to any known rules of law, has no precedents, and must make its own decisions based on the opinion members give with regard to a certain set of facts ascertained by them. Surely while this is being done the quorum of the commission should be normally two permanent members, two people acquainted with everything done by the commission. The Minister's argument against a certain amendment of mine was that there would be three people on this commission and that even though one member made the inquiry, the report would be made to the commission and all three members would be familiar with the whole field, with the precedents and principles adopted and with the general lines taken. If that is so, then normally before they make a report, two of the three members would have to be present.
I agree with and I accept the Minister's view that there would be circumstances in which the whole business would be held up because two permanent members were unable to attend, and then, in that case, the Minister inside his Department by a  stroke of the pen, or a word on the telephone, can direct that some other quorum should be available for that particular period. It is not unreasonable. The amendment does not hamper in any way the work of the commission and does ensure that when it is working it will normally work in such a way that the majority of the commission will be present and that all the recommendations made to the Minister will be at a meeting attended by people who are acquainted with all the circumstances, above all with the lines on which the commission proposes to proceed. It is a very reasonable request and is no way hampering the machinery of the Bill.
Mr. Summerfield: I rise to support the amendment and appeal to the Minister to accept it. It is an important matter because of the powers vested in a small commission to make such a report. I again appeal to the Minister to see if he could not accept it.
In paragraph 8 (1) to delete all words after “means” in line 1 to the end of the sub-paragraph and to insert “a person who is by profession an accountant or auditor or is a member of a firm of accountants or auditors and who is authorised by the commission to act on their behalf.”
I introduce this amendment because in the first edition of the Act the words “authorised person” were defined and there was quite an amount of controversy in the Dáil. As a result, the authorised person now has lost definitory powers and anybody can be appointed to be an authorised person. A great number of people, particularly those in trade, have a very strong apprehension that a type of person may be appointed as an authorised person under the Bill who should not be appointed, and I am trying to narrow it down and see that the type  of person who should be appointed temporarily under the Bill would be either an auditor or accountant, or a member of a firm of auditors and accountants. The reason I am doing it is because under the Bill as it stands an authorised person has powers which are extremely wide.
Certain tradespeople would not be happy in disclosing information to any person except one who through his profession is accustomed to treat confidential matters confidentially and would not be happy allowing any other person to inspect documents, extracts or books and the like. Therefore, I am putting down this amendment so that the authorised person qualified to do this work will be either an accountant, auditor or a member of a firm of accountants or auditors, and I would like that the definition of “authorised person,” in so far as this work is concerned, should be limited to the type of person I have proposed in my amendment.
Professor Hayes: I do not like the amendment because it is too confined and I agree with the Minister on that. The only interest I had was to see if it would produce from the Minister an explanation as to what kind of person he had in mind. For example, I have heard and I do not know whether it is true, that hotel keepers, for example, underwent inspection at one period by people from the Tourist Board, which seems quite absurd. The Minister says that under the Bill these people will be civil servants and officials of the Department of Industry and Commerce. In that case, I would be opposed to the amendment.
Mr. Lemass: The intention is that  the authorised officers attached to the commission will in the main be members of the inspectorate branch of the Department of Industry and Commerce but in certain cases the Garda may be used.
Mr. McGuire: I was pleased to hear the Minister's view that officials of the Department of Industry and Commerce would be used. I am rather glad to hear that because this is one of the sections causing most worry to business people generally. In the original form of the Bill I think the word “Garda” was used and this has apparently been changed now and the work is to be done by “an authorised officer.” A lot of people feel that this clause illustrates more than anything else the degree to which the State is interfering in the lives of the citizens and in their businesses because originally in Bills of this kind there used to be a provision that only people with the rank of superintendent could do this work. The word “Garda” crept in by degrees and the ordinary business person was beginning to ask where we were getting to in all this matter.
If you are in business and there is somebody of rather low rank authorised to come into your business and make inquiries, particularly at a time when you are busy, it can cause quite a lot of trouble because in the minds of the public a person of low rank is not a very responsible person and may not be a person competent to carry out the investigation in a proper way. A person might be the lowest form of clerk—and I am not saying that because he is so he is an irresponsible person—but he may not be sufficiently qualified to conduct an inquiry in a proper way. It is wrong to allow a very junior and irresponsible person to come in and make inquiries such as can be made under this section. It would be worth while to go to some trouble to define a type of person authorised to make such inquiries, who must be a responsible person. It is only by having such persons that you could assure respect for them and for the commission and for the State itself. If you send in irresponsible people it  does lead to the feeling that the State does not care how much it interferes with the lives of the citizens or what type of person it is going to send to interfere with business.
There is another amendment on this subject in the name of Senator O'Reilly and I think that these two things should be taken together. I am glad to hear that the Minister has in mind a certain type of official for this work, but I think that such officials should be clearly defined.
Mr. McGuire: I was not saying that you did not regard some people as important because of their position in life but you must have responsible people when you are making inquiries of this sort. Even in trade unions you have regard to these things.
Mr. Summerfield: This section is very unsatisfactory and to my mind the use of the phrase “authorised person” is not sufficient. It could be that one of the lower orders such as have been referred to already might be used or somebody quite incompetent to do this type of work and who by their approach to the whole matter would be unsuitable. When the Minister invited responsible bodies to give their views on this Bill one of the suggestions made by the Chamber of Commerce was that the commission or the Minister if they wanted certain information should apply to the courts in the ordinary course for a discovery of documents in accordance with legal procedure. We still feel that that should be so in this important matter when we are dealing with fair trading practices. It is not sufficient to say that inquiries will be made by an authorised officer in a Bill such as this.  The Minister or the Government should have to apply for a discovery of documents in the courts just as any private individual or trader would do and bear the costs of the application. I suggest that the Minister should still give consideration to that matter and provide for it in some way.
Mr. Lemass: I would like to meet some of the “wilting lilies” in the business community of whom Senator Summerfield and Senator McGuire speak. Most of the businessmen I have met are tough and will not be unduly worried by the approach of an authorised officer.
Mr. Baxter: Surely the Minister should try to meet this in a more realistic manner? I cannot pretend not to be concerned as an ordinary citizen about this discussion. It appears to me that we have reached the stage where we are getting to the time where a Minister or the State feel that they can do anything in any way they like to anybody and that the State is right to disregard the lives of the individual if it feels it ought to do it.
Mr. Lemass: Might I suggest to Senator Summerfield that there is a similar provision for inspection by an authorised officer in the Industrial Development Act and that that Act passed through this House without a peep out of Senator Baxter?
Mr. Baxter: It is no excuse for us if we have been too liberal in our approach in one case that we should be liberal again. The Minister has used the words “authorised officer” but he may authorise any person and may send in any member of the Garda Síochána to make inquiries or anybody else and he is an authorised officer. In those circumstances, the Minister could not blame the business community, the commercial community and the industrial people in this country if they have fears about this type of investigation. I think myself from the point of view of the industrial community that we can develop the drive towards production and development too much. You can make people sick and tired of production if you carry your measures too far.
 Anybody with any experience of business whatever knows of the difficulties from which the business community is suffering. They have difficulties concerning labour, for instance. It does not matter how much you pay you will often find difficulties in getting labour and services of that type. It is enough to have those difficulties without having the further difficulty of being worried unnecessarily by an authorised officer of the State. Inspectors going up and down the country during the emergency did a great deal of harm to the reputation of the Government and the Ministers. I hope that the commercial community will want to make this Bill work, but they must be given some protection.
Since I first entered Dáil Éireann in 1923 I never saw a similar document, a document so vague which purported to make a law and which does not say what the law is going to be. It has been drafted but there is no precedent or custom on which the draftsmen could draw in framing this measure.
Mr. Baxter: You could get support for that from all sides of the House. It should be of considerable concern to the Minister that this measure should work. One thing he should do—and there will be some difficulty about it— is to re-establish the confidence of the people on whom the investigators will call following the report of people who perhaps are not the kind we would like to have spying on ourselves. I suggest this is all too serious and my view, mainly as an outsider, is that the whole procedure does not satisfy me. I can see tears over this measure yet and maybe it will not be the people the Minister thinks but others who will cry over it.
Mr. Colgan: Some years ago I had the temerity to intervene in a discussion about something that concerned farmers and farm labourers and Senator Baxter asked me what right I  had to come into his province and what I knew about the matter and I had to admit I knew nothing. I wonder, then, about the why and the wherefore of his intervention now in this matter that primarily concerns industrialists. I am rather concerned at the attitude of industrialists generally. They adopt the attitude that this thing does not concern them personally: “I am not like other men, I am all right.” Then they proceed to give the impression that they have much to fear by the passage of this Bill. If they have nothing to fear, why all the concern? We have been swapping logic on the question of commas and the taking out and putting in of words and it appears to me that the business community have a lot to fear from the Act.
The Minister is concerned only with people who are generally injuring the general community. No matter how enthusiastic a businessman or farmer he is, every Senator must appreciate that there are some people who are injuring the public. Whatever about our being an island of scholars, we are not all saints. The Minister is only concerned with getting after the people who are injuring the community and the general good. I cannot understand the concern of each individual industrialist in the House and now even a farmer representative is beginning to worry about what is in the Bill. They should take a lesson in that regard from the trade unions who when they keep the law have nothing to fear. Everybody outside thinks the trade unions are breaking the law but, as the Minister says, they have statutory permission to act in that way.
Despite what Senator Colgan has said the authorised officer is a person who will have great importance under this Bill. We should provide that an authorised officer will be a person of responsibility, who will carry out his work as the Minister would require it to be carried out. It is not right for anybody to think that we may or that we should authorise a person to enter into premises and interview people unless that person was properly fitted to do that work. I would, of course, have no objection to a regular officer from the Department of Industry and Commerce or any other Department being appointed an authorised officer, but I think the Minister should indicate that some such person as that mentioned in my amendment—a higher executive officer or a person holding the rank of higher executive officer or of a higher rank—would be appointed as an authorised officer. I would think it very wrong and I should feel very loth to give information to a person who would not impress me with his ability to receive it and convey it to the commission.
I think it would be altogether wrong to authorise members of the Garda Síochána to make investigations as authorised officers for the purpose of carrying out the necessary work of this Bill. The Minister should see that the authorised officer would be a person who would compel respect and regard in the mind of the person whom he was  interviewing. After all, matters will be made relatively simple for the commission if its authorised officers are able to deal fully with the matter with which the commission intends them to deal and it is only a person holding one of the ranks I have mentioned in the amendment who would be properly fitted to do that work.
Reference has been made to officers of the Department of Industry and Commerce during the period of the emergency. During that period the inspectors from the Department did their work in an excellent manner and impressed the people with whom they had to deal. If the Minister would assure me that that type of person—I am aware that a number of those inspectors had not the rank mentioned in the amendment—would be appointed authorised officers and that it is not intended to appoint a member of the Garda Síochána to carry out such investigations, I would be satisfied. I would impress on the Seanad that we should not put any Department or commission into the position that they would be entitled to send anybody into a person's premises with a view to getting the information required. We should send in only those who would be able properly to discharge their duty and to impress the people whom they were going to see.
Mr. Lemass: This work would be quite inappropriate for officers of the administrative or executive grade. It is officers of the inspectorate grade who would do it. Is it not farcical to make it a legal obligation on a commission of this kind to appoint responsible officers? Is there any reason to think that they would be anything else?
Mr. O'Donnell: Is the Minister aware of the consternation there is really felt by people outside over this section?  Does he think that people are not really worried that anyone can come in, delegated by the Minister, to examine private affairs, to examine their books, that this may be anyone whom the commission in their wisdom may appoint as an authorised person? Senator Baxter has stated his view and no matter whether the Industrial Development Authority Act got through the Seanad with a similar proviso or not does not matter. You commit mortal sin once and go to confession and get shrived; if you commit it again you may get a harder going. This is an outrageous section where people, at the behest of the commission, can examine books and documents and people do not know who they are; they can only take the Minister's word for it.
Mr. Lemass: You do not have to take my word. If the Senator reads the Bill he will find that the authorised person must be authorised in writing, that the authorisation must indicate the matters in respect of which he is authorised and that he must produce that authorisation before he has any rights.
Mr. McGuire: I have already spoken on this matter on another amendment. There is one point I would like to make clear. Though entitled to speak only in an individual capacity, it is not I alone who am objecting to these provisions. Along with others representing industry there are independently minded people like Senator Professor George O'Brien and Senator Baxter, who are in different walks of life and who have spoken on this. I happen to be voicing the sentiments and views that were expressed by every chamber of commerce in the country on this Bill. They went into this closely. I read every one of those expressions carefully and because of that I feel it is my duty to try and make the case the business people feel. I do not want it to be said that Senator McGuire does not want this Bill. As already explained, it has very little to do with me in my own business. I am probably one of the least affected by restrictive practices or having any occasion to practise them.
I am making the case that has disturbed the business community and  anyone can read it in the journals of the chambers of commerce and of any trade association which has objected to this. Can we not be sensible on this point? If we met the Minister in his office he would say: “I am very anxious to allay your fears, and if amendment is required will you suggest it?” He is not taking that line here. He is sitting tight.
Mr. Lemass: What the chambers of commerce want is what Senator Summerfield proposed, namely, that the commission would not have any powers, that they would not be able even to ask a trade association for a list of its members without going to the High Court for a warrant first. I think that is nonsense.
Mr. McGuire: The Minister is generalising. I think there has been a spirit of non-compromise. Senator Douglas has gone to a lot of trouble and has got practically nowhere. We feel it is useless and that the Minister is using this weapon on the business community and is ignoring them. Anyone listening to the debate could not help feeling that we were being completely ignored, that there was no attempt to listen to our views, even to change one word.
Mr. O'Donnell: According to himself, the Minister does not want to inflict any punishment on anyone who does not deserve it. We are arguing that, through some lack or some oversight, there might result a severe penalty  on a manufacturing firm. It may be a mere misinterpretation of an assignment by some person, or a type of person might be sent who should not be sent. Could the Minister not define the person?
Mr. Lemass: Yes. He must be a person specifically authorised by the commission to do the job, he must be chosen by the commission as suitable and authorised by them to do it. I had to ask the Dáil, at one stage, to try to imagine the commission as three or four sensible people without straws in their hair—ordinary people like Senators, acting rationally and very much concerned to see that the prestige of the community would not be lowered by anything they did.
Mr. O'Donnell: I am in sympathy with the Minister, as I feel that his heart is burdened down to make certain that this will be all right; but there is a principle involved and I do not agree with this idea.
Mr. O'Donnell: He is asking the power of the State, through the commission, to go into houses and premises of private people and by some sacrosanct policy which the commission develops in itself, it appoints certain people to go into those premises to examine private documents and books. I say that is as near totalitarianism in democracy as anyone can find. I have said that before and I say it again. It is a very dangerous precedent. Of all the qualifications or definitions in the Bill that are in need of clarification, this one regarding the authorised person is the most important. It is opening the door wide to misconstruction.
I am sure the Minister will have no hesitation in accepting this amendment. By virtue of the section which I seek to amend, if any person discloses information available to him by virtue of the powers of obtaining information required by the Bill, he shall commit an offence and in accordance with the section as drawn he will be liable to a penalty of £100, or imprisonment for a period not exceeding six months. That section would apply to any member of the commission, any authorised officer and any other person who would obtain information by virtue of any work he had to do or any evidence he heard if he was present at an inquiry. I think we should make a greater endeavour to see that no such information would be disclosed by anybody in the course of investigations, if an authorised officer should obtain information which it might be essential would not be disclosed to any person or body save to members of the commission.
It should be made clear that an officer who disclosed such information would be liable to a very serious penalty. I agree that a penalty of £100 or six months' imprisonment is a serious penalty, but I think we should indicate that we take an even more serious view of such a disclosure and should provide a penalty not of £100 but of £250. The Minister may say that, in similar Acts, a penalty of only £100 or six months' imprisonment is provided, but that is not any answer to the case I am making. I am not concerned with what is in a previous Act; I am concerned only with what is in this Bill; and I say that by providing a penalty of £250, we should mark the serious view we take of such a disclosure, a disclosure which for many people might be a very serious matter.
Mr. Summerfield: I support this amendment and I want to draw the attention of the House to the difference in the wording of the paragraph and the wording of Section 14 of the Bill, in relation to the punishments provided, where an offender under the Act, on summary conviction, is liable  to a fine not exceeding £500 and to all sorts of other penalties as well. In the many discussions on this Bill— I happen to be vice-president of the Associated Chambers of Commerce, from which all the amendments submitted to the Minister emanated, so that I have been in on the ground floor in regard to all the discussions —it was strongly felt that the punishment provided in the case of those who would divulge information gleaned in the course of an investigation was out of proportion with the severe punishments provided for offenders under the Act. If I were to speak for another half hour, it would mean the same thing, but we do feel that a good case can be made for increasing these penalties and I hope the Minister will be able to accept the amendment.
Mr. Lemass: I do not think there is any comparision between the penalties prescribed here and those prescribed earlier in the Bill for offences under a confirming Act. A trade ring defying the law is doing so for profit and that profit could be very substantial. That is why a substantial penalty has to be prescribed. In this case, however, it seems to me that a maximum penalty of £100 fine and, at the discretion of the court, six months' imprisonment as well, is sufficient deterrent to anybody in the matter of the unauthorised disclosure of confidential information.
There is the further fact which Senators have not adverted to that any such person would also be liable for any damages which his disclosure caused to a third party. In the circumstances it seems to me the penalties are high enough. I do not know that it makes a lot of difference whether you fix the maximum at £100 or £250. It is at the discretion of the court, anyway, and the only thing we fix is the limit beyond which the court cannot go. The penalties seem quite reasonable and it would look rather fantastic to put them higher.
Mr. Douglas: Do I understand the Minister to say that an officer of the Department operating under this is not protected and that if, as a result of information given by him, a very large firm lost £1,000,000, he can be sued?
Mr. Lemass: Anything done by an authorised officer in discharge of his duty is protected in the section. It is the unauthorised disclosure of confidential information that involves a person in a penalty and makes him liable for damages.
Mr. Lemass: It might be the managing director of Guinness's. This prohibition on the disclosure of information applies not merely to the members of the commission or its officers, but to anybody present at a private meeting of the commission. It might be the Senator himself.
Mr. Hearne: This does not apply only to the authorised officer. It applies to any person, members of the commission or any officials who may be present, or any private person who may be present at a private meeting of the commission. If such a person discloses any information which he may learn, he is liable to the penalties set out here, and also for damages.
Mr. P.F. O'Reilly: I thought I made it perfectly clear that I was not dealing with an authorised officer. I was dealing with everybody who could obtain information and who discloses it. I think the Minister should accept the amendment. It is not that I am concerned with seeing that a person is fined £250. The money penalty is provided for in such a way that a fine of up to £100 or imprisonment for six months——
Mr. P.F. O'Reilly: And—or. A justice may fine a man a sum not exceeding £100 and may, if he wishes, impose a term of imprisonment, but I am not so much concerned to see that an offender is fined a particular amount or imprisoned for a certain period. I am concerned to see that the view of the Oireachtas that such an offence is very serious is made clear. The fixing by us of the amount of the penalty at £250 will make it clear that we regard such an offence as a very serious offence, as it could easily be, and for that reason I should like the Minister to accept the amendment.
Mr. Lemass: It is an easy thing for a Minister to do, but in fact, as the Senator knows, these maximum penalties prescribed in laws are carefully calculated by the legal advisers to the Government who relate the offence to other offences in other Acts. It is better to rely on their judgement and, in their view, this will be an adequate deterrent to the unauthorised disclosure of information.
Mr. P.F. O'Reilly: I quite realise that they endeavour to relate them to various offences, but I differ from them if it is their considered opinion that this offence should be regarded in the light of an offence for which the maximum penalty would be £100. I would regard the disclosure by an inspector or collector of taxes of my income in a particular year as a shockingly serious offence.
Mr. P.F. O'Reilly: I am quite sure that what the Minister says is correct, but I want to see it made perfectly clear that an authorised officer, a member of the commission or any witness obtaining information at a sitting of the commission who discloses such information commits a very serious offence. I or any other Senator would feel that an inspector or collector of taxes who disclosed to members of the public what my or his income was had committed a very serious offence, and I suggest that no less serious an offence would be committed by any person who disclosed information obtained during the carrying out of an investigation by this commission. It is with a view to marking the seriousness of the offence that I suggest a penalty of £250.
Mr. Loughman: A person who would look on £100 as not being a serious sum of money would regard a sum of £250 in the same way. I would rather think that anybody who was faced with six months' imprisonment no matter who he was or what amount of cash he had would think that it would be a pretty serious matter.
This amendment deals with the Second Schedule which, so far as I remember, the Minister said he included in the Act for the purpose of defining as far as possible the sort of work the commission should do. I have read this  Schedule very carefully and I do not see any reason for paragraphs (a) to (j), inclusive. Since amendments No. 26 and No. 27 are complementary, I would like to take the two together. Amendment No. 26 deals with the deletion of paragraphs (a) to (j) and amendment No. 27 deals with the deletion of the word “other” in paragraph (k), line 38. I think that in itself is sufficient. I think the remaining section would cover everything that is rather loosely expressed in paragraphs (a) to (j). I think it is only waste of time to define the sort of thing which the Minister endeavoured to define. It does not explain anything. My amendments, if accepted, would provide the commission with a far greater scope for interpretation.
Mr. Lemass: There would be some sense in the Senator's suggestion if he proposed to cut out paragraph (k) and leave the rest. What paragraph (k) means is very doubtful and I would hate to be pressed for an interpretation. When I introduced the Bill, there was no such Schedule. I thought it was better to leave unfair trade practices undefined except in so far as they are defined by implication in Sections 8 and 9 of the Bill. It was argued strongly in the Dáil that there should be something in the Bill to guide the fair trade commission in their work, some indication of the type of practices the Oireachtas want to see eliminated from commercial life. An amendment was moved to that effect which, on consideration, I decided to accept and incorporate in the Bill. This Schedule is the amendment. It is not there as an exhaustive definition of unfair practices but as a guide to the commission in their work particularly in the matter of fair trading rules. On the whole, it is better to have it there.
Mr. Douglas: I appreciate as much as anybody the difficulties of the Schedule, but I do not think, even if we argued for two or three days more, we would get much further as regards the Schedule. It is a genuine effort, whether good or bad, to give some idea of what the Bill is intended to be about. It does not do anything more than that. I do not think the business  community have really any quarrel with that particular matter. Senator O'Donnell need not be afraid of the Schedule. Whatever he may be afraid of in the Bill will not arise out of the Schedule.
Mr. O'Donnell: I am not afraid of the Schedule, but I think it unnecessary. After re-reading the whole thing, I still think that paragraph (k) alone would cover every single idea expressed in paragraphs (a) to (j). It was in order to simplify the whole thing and give wider powers of interpretation to the commission that I made the suggestion. I am not afraid of the Schedule. There is nothing in it.
Mr. Douglas: Before this Bill it used to be the duty of Parliament to define and make up its mind what was a public interest. Social justice is something I believe the Supreme Court can define under the Constitution, but until that is done I prefer to leave the matter alone.
Mr. McGuire: I think these definitions give at least some idea of what is intended. They are not ideal. I think it is impossible to give a definition because the things we are endeavouring to come to grips with are indefinable. In so far as these definitions give an indication of what is intended, I think it is desirable to include the paragraphs (a) to (j) with the inclusion of (k).
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